TLJ News from August 1-5, 2007

Senate Commerce Committee Approves Bill to Require FCC to Study Content Blocking Technologies

8/2. The Senate Commerce Committee (SCC) approved an amended version [PDF] of S 602 [LOC | WW], the "Child Safe Viewing Act of 2007" by voice vote

This bill would require the Federal Communications Commission (FCC) to initiate a notice of inquiry (NOI) to examine "(1) the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms; and (2) methods of encouraging the development, deployment, and use of such technology by parents that do not affect the packaging or pricing of a content provider’s offering."

The bill would require the FCC to consider not only cable broadcast television, but "wired, wireless, and Internet platforms", and not only TV sets, but also "DVD players, VCRs, cable set top boxes, satellite receivers, and wireless devices".

The FCC currently has no statutory authority to regulate internet based speech.

The bill would require that the FCC then write a report for the Congress detailing the finding of this NOI.

The bill would not impose any obligations upon providers of video programming, device manufacturers, or others. Nor would it require the FCC to promulgate any new rules.

See, full story.

Senate Commerce Committee Approves Bill to Revise and Extend Do Not Call Registry Fees

8/2. The Senate Commerce Committee (SCC) approved an amended version [7 pages in PDF] of S 781 [LOC | WW], the "Do-Not-Call Registry Fee Extension Act of 2007" by voice vote.

This bill would extend the authority of the Federal Trade Commission (FTC) to collect Do-Not-Call Registry fees to fiscal years after fiscal year 2007. This bill would also lower fees.

Sen. Mark Pryor (D-AR), the lead sponsor of the bill, issued a release that states that this bill "will reauthorize the FTC’s ability to collect fees from telemarketers to cover the operational costs of the program permanently. Currently, telemarketers pay $62 for each area code, with the first five area codes free and total fees capped at $17,050. They are required to search the registry every month and drop from their call lists the phone numbers of consumers who have registered."

The bill would lower these fees to $54 per area code, or a maximum of $14,850, or still less, under certain circumstances. Also, some users would be exempted from paying fees.

Sen. Pryor introduced the original version of this bill on March 6, 2007.

7th Circuit Opines on Generic Marks

8/2. The U.S. Court of Appeals (7thCir) issued its opinion in Harley Davidson v. Top Quality Service, a trademark case involving use of the word "hog".

Harley Davison makes big motorcycles. The word "hog" has long been used in connection with motorcycles. Subsequently, Harley created a motorcyclist club titled "Harley Owners Group", and registered the marks "HOG" and "H.O.G." with the U.S. Patent and Trademark Office (USPTO). Top Quality Service organized ocean cruises titled "HOGS ON THE HIGH SEAS", beginning in 2002, for motorcycle enthusiasts.

Harley filed a complaint in U.S. District Court (EDWisc) against TQS alleging trademark infringement, false designation of origin, and unfair competition claims under the Lanham Act, and related state law claims. The District Court granted summary judgment to TQS.

Harley brought the present appeal. The Court of Appeals reversed. It wrote that generic marks "ordinarily cannot function as trademarks", and that a "generic term is one that is commonly used as the name of a kind of goods." The U.S. Court of Appeals (2ndCir) held in 1999 in Harley-Davidson v. Grottanelli, 164 F.3d 806, that the term "hog" is generic, and denied Harley trademark protection.

However, in the present opinion, the 7th Circuit distinguished the two cases. It wrote that "A company's name may be generic as to one of its products, but not generic as to its other products, even those related to the first product." It concluded that the 2nd Circuit opinion only stands as authority for the proposition that "hog" is generic as applied to large motorcycles. In contrast, the present case involves the question of whether "hog" is generic as applied to a motorcyclist club. It concluded that it is not, and that Harley is entitled to trademark protection.

Hence, it reversed the District Court. Judge Evans dissented.

This is "hogwash", wrote Evans; the present case is indistinguishable from Grottanelli. He argued that the meaning of hog is not Harley motorcycles, and cited as authority the late Hunter Thompson, who stated that a hog is "the kind of cycle the German couriers used to run down dogs and chickens -- and people -- in World War II: low brutish machines, with drivers to match."

This case is H-D Michigan, Inc. and Harley-Davidson Motor Company, Inc. v. Top Quality Service, Inc., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 06-3618, an appeal from the U.S. District Court for the Eastern District of Wisconsin, D.C. No. 04 C 0533, Judge Charles Clevert presiding. Judge Flaum wrote the opinion of the Court of Appeals, in which Judge Williams joined. Judge Evans dissented.

People and Appointments

8/2. President Bush announced his intent to nominate Dennis Carlton to be a Member of the President's Council of Economic Advisers. He is currently a Deputy Assistant Attorney General in the Department of Justice's (DOJ) Antitrust Division. He is on a leave of absence from the University of Chicago's Graduate School of Business. He was an economic professor and a consultant at Lexecon. See, White House release.

8/2. The Senate Judiciary Committee (SJC) approved the nomination of Judge Leslie Southwick to be a Judge of the U.S. Court of Appeals for the 5th Circuit, by a vote of 10-9. See also, White House press office release. The full Senate has yet to vote on the nomination.

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8/2. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Jada Toys v. Mattel, a trademark infringement, dilution, and copyright case involving the marketing of toy cars and trucks. The U.S. District Court (CDCal) granted summary judgment to Jada. The Court of Appeals reversed and remanded. This case is Jada Toys, Inc. v. Mattel, Inc., U.S. Court of Appeals for the 9th Circuit Circuit, App. Ct. No. 05-55627, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-04-02755-RGK(FMO), Judge Gary Klausner presiding. Judge Brian Sandoval, sitting by designation, wrote the opinion of the Court of Appeals, in which Judges Harry Pregerson and Johnnie Rawlinson joined.

8/2. The Federal Communications Commission (FCC) adopted and released an order [2 pages in PDF] regarding LEC backup power sources in its proceeding titled "In the Matter of Recommendations of the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks". The order extends the effective date (to October 9, 2007) of the FCC's rule that requires local exchange carriers (LECs) and commercial mobile radio service (CMRS) providers to have "an emergency backup power source for all assets that are normally powered from local AC commercial power, including those inside central offices, cell sites, remote switches and digital loop carrier system remote terminals." This item is FCC 07-139 in EB Docket No. 06-119 and WC Docket No. 06-63.

8/2. The U.S. District Court (EDVa), Judge Leonie Brinkema presiding, sentenced Timothy W. Hall to serve two years in prison, serve three years of supervised release, and pay a $1,200 fine, following his May 8, 2007 plea of guilty one count of criminal copyright infringement in connection with his sale through his web site of copyrighted videogames.

8/2. A grand jury of the U.S. District Court (SDCal) returned a 313 count criminal indictment that charges 18 people with various federal crimes in connection with their alleged illegal online sale of prescription pharmaceuticals. The Department of Justice (DOJ) stated in a release that the indictment charges "racketeering and conspiracy to commit racketeering; distribution and dispensing of controlled substances and conspiracy to distribute and dispense controlled substances; mail and wire fraud, and conspiracy to commit mail and wire fraud; conspiracy to commit money laundering; and conspiracy to dispense and dispensing of misbranded drugs with the intent to defraud and mislead". The inductment was returned on July 27, 2007, and unsealed on August 2, 2007.

Copps Wants FCC Review of News Corp.'s Acquisition of Dow Jones

8/1. News Corp. and Dow Jones & Co., Inc., owner of the Wall Street Journal, announced that News Corp. will acquire Dow Jones. Federal Communications Commission (FCC) Commissioner Michael Copps promptly issued a statement [PDF] asserting regulatory authority over the transaction.

He wrote that "It's interesting to hear the ``experts´´ claim the transaction faces no regulatory hurdles. Not so fast! This deal means more media consolidation and fewer independent voices, and it specifically impacts the local market in New York City. What's good for shareholders of huge media conglomerates isn't always what's good for the public interest or our civic dialogue."

Copps said that "We should immediately conduct a careful factual and legal analysis of the transaction to determine how it implicates specific FCC rules and our overarching statutory obligation to protect the public interest. I hope nobody views this as a slam-dunk."

Copps did not assert in this release that the Wall Street Journal is a local newspaper, or otherwise elaborate on the FCC's broadcast television newspaper cross ownership rules, or any other rules.

People and Appointments

8/1. Federal Communications Commission (FCC) Commissioner Deborah Tate announced that Amy Blankenship will be her legal advisor for media issues. She previously worked for Sen. Sam Brownback (R-KS), who has been a member of the Senate Judiciary Committee (SJC) and the Senate Commerce Committee (SCC). Before that, she worked for Sen. Jeff Sessions (R-AL). The FCC's Bill Freedman, who had been temporarily advising Tate on media issues, will return to his position as Associate Chief of the FCC's Media Bureau. See, FCC release [PDF].

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8/1. The Federal Communications Commission (FCC) adopted and released a Second Further Notice of Proposed Rulemaking [31 pages in PDF] that relates to FCC regulation of ownership of media generally, and minority and woman ownership particularly. Initial comments are due by October 1, 2007. Reply comments are due by October 16, 2007. FCC Commissioners Michael Copps and Jonathan Adelstein issued a joint statement [PDF] to complain about "the inadequate time given for public comment", and to rail about media ownership generally. This item is FCC 07-136 in MB Docket Nos. 06-121, 02-277, 01-235, 01-317, 00-244, and 04-228.

8/1. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, describes, recites, and sets the effective date for, its amendments to its Trademark Rules of Practice. The notice states that these amendments require plaintiffs in Trademark Trial and Appeal Board (TTAB) inter partes proceedings "to serve on defendants their complaints or claims; to utilize in Board inter partes proceedings a modified form of the disclosure practices included in the Federal Rules of Civil Procedure; and to delete the option of making submissions to the Board in CD-ROM form." The effective date is November 1, 2007, except that some amendments are effective August 31, 2007. See, Federal Register, August 1, 2007, Vol. 72, No. 147, at Pages 42241-42264.

8/1. The Securities and Exchange Commission (SEC) announced in a release that "it has started distribution of the $267 million Fair Fund created as part of settlements with Qwest Communications International Inc. and several of its former executives. The funds will be distributed to approximately 200,000 investors who purchased Qwest's securities between July 27, 1999, and July 28, 2002. The distribution process is expected to be completed within five days."

8/1. The Securities and Exchange Commission (SEC) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (January 1, 2008) for, its amendments to its proxy rules. This notice states that "issuers and other soliciting persons will be required to post their proxy materials on an Internet Web site and provide shareholders with a notice of the Internet availability of the materials". See, Federal Register, August 1, 2007, Vol. 72, No. 147, at Pages 42221-42239. See also, stories titled "SEC Adopts E-Proxy Rule Changes" in TLJ Daily E-Mail Alert No. 1,506, December 15, 2006, and "SEC Seeks Comments on Proposal to Mandate Internet Availability of Proxy Materials" in TLJ Daily E-Mail Alert No. 1,529, January 30, 2007.

8/1. The Department of Justice (DOJ) announced in a release that Xiaodong Sheldon Meng plead guilty in U.S. District Court (NDCal) on August 1, 2007, to one count of violating Economic Espionage Act (EEA), which is codified at 18 U.S.C. §§ 1831-9, and one count of violating the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR), in connection with his export of source code to the People's Republic of China (PRC). The DOJ stated that Meng illegally installed on a PRC Navy web site a software program, and trade secret, named Mantis, that is owned by his former employer, Quantum3D. The program simulate real world motion for military training purposes. The DOJ also stated that Meng illegally exported without a license the source code to another Quantum3D program, named viXsen, a training simulator for military fighter pilots.

Go to News from July 26-31, 2007.